Policy Implications of Property Law/Doctrine
Note: Law should serve the human values that are important to the people of the society. Generally property doctrine tries to serve four important values:
1. Reward productivity and foster efficiency
2. Create simple, easily enforceable rules
3. Create property rules that are consistent with societal habitats and customs
4. Produce fairness in terms of prevailing cultural expectations of fairness
1. Possession: 1) an intent to possess on the part of the possessor and 2) his or her actual controlling or holding the property (occupancy)
2. First-in-time, First-in-right: all other things being equal, the chronologically first possessor has the better title.
3. Constructive Possession: owning property through a prepossessory interest; also, property that is on your land
I. Acquisition by Capture, Ownership & Acquisition
Pierson v. Post: Post was hunting a fox. Pierson (D), knowing this, killed the fox and carried it off. Post only showed pursuit; hence, there as no occupancy or legal right in Post and the fox became Pierson’s (D) property when he killed and carried it off.
· R: Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer.
· Requires a mortal wounding for a hunter to obtain a right to possession because it 1) is likely to prove fatal to an animal and 2) show subjectively a “manifest intention” to seize the animal—that the pursuer intended to follow the hunt with a kill and is not just out for the enjoyment of the case
Popov v. Hayashi: At a record-breaking baseball game, Popov (P) caught Barry Bond’s homerun ball but was attacked due to a violent swarm to obtain the ball. After being thrown on the ground, the ball came out of Popov hands, and rolled to Hayashi (D), where he picked it up and put it in his pocket.
· R: Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable interest in the property. Want to establish the rightful owner and discourage violence. Since Hayashi acquired full dominion over the ball and did so without committing violent acts, a middle ground was needed (equitable division)
· Conversion v. Trespass to Chattel:
o Conversion is the wrongful exercise of dominion over the personal property of another. There must be actual interference with the plaintiff’s dominion. This doesn’t exist, however, unless the ball rightfully belongs to Popov
o Trespass to Chattel exists where personal property has been damaged or where the defendant interfered with the plaintiff’s use of the property. In PvP, Popov did not claim Hayashi damaged or interfered w/ his use/enjoyment of the ball.
Ghen v. Rich: Rich (D) purchased a whale at auction from a man who found it washed up on the beach. The whale had been killed at see by Ghen’s crew, which left Ghen’s bomb lance in the animal.
· C: Ghen, through the use of the bomb-lance, did all that he practically could to secure the whale.
· R: When all that is practicable in order to secure a wild animal is done, it becomes the property of the securer who has thus exercised sufficient personal control over the animal.
· A: Two major considerations in this case: 1) all that was practicable to secure the whale was done and 2) the trade usage was industry wide, necessary to the survival of the industry, and fair to all parties because it works well in practice (including the whale’s finder, who received a reasonable salvage fee). This rule was not being applied to a sport (hunting or fishing) but to an industry.
Keeble v. Hickeringill: Keeble (P) contended Hickeringill (D) scared ducks away from his pond resulting in damage.
· C: Although no title to the game existed, Keeble was using his land in a lawful manner; thus Hickeringill interfered with this lawful use and is liable in damages.
· R: Damages may be recovered for the intentional frightening of game off another’s land. “When a man uses his art or skill to acquire property to sell and dispose of for profit, he that hinders him is liable for actions against him”
II. Additional Rules of Capture (Animals)
A. Ratione Soli: If you kill an animal on someone else’s land, you are poaching
a. Ex: R Shoots an animal on B’s land, puts it in his truck and goes to a gas station. T steals it form the back of R’s truck. Can R get it back? Yes.
i. Physical possession is presumption of title until proven otherwise.
laws because they believe their customs/norms are better then the law (downloading music illegally)
ii. Pushing hard against a norm is sometimes counterproductive
b. Why not accept custom into law?
1. Practices may be inefficient
a. Can be solved with quotas
2. May not align with social or broader goals
3. Property Resource Theory: Balance between the flow & stock. Otherwise, you have too few and eventually extinction
4. Under first capture, if you don’t capture, someone else will (tragedy of the commons)
5. Open access dissipation- sometimes resources are scarce, and over-use can cause dissipation of resources
1. Leads to distribution outcomes that we consider inappropriate
2. Creates outcomes we don’t like
iii. Information costs
1. If it affects a close community only
c. Dealing with custom
i. People behave not according to law but according to custom (people ignore the law); therefore, a legal business model that is formed around customs is often much easier to work with than fighting the local customs
ii. If the law is changed, sometimes the norms follow and people start adjusting to the law. People internalize a legal norm as a social norm and then they comply.
1. Ex: public littering and “pooper scooper” laws—people start caring about clean street
iii. Law changes expectations: if an individual doesn’t care about the law, he may care what his neighbor thinks